BALLAVA KUMAR JAYSINGH Vs. PRAMOD KUMAR PANDA

JUDGEMENT

(1.) THIS is a revision under Section 115 of the Code of Civil Procedure, 1908 (for short, 'the CPC').

(2.) THE facts briefly are that the Opp. Party No. 1 filed a suit C.S. No. 1 of 2003 in the Court of the Learned Civil Judge (Jr. Divn.), Aska. The case of the Opp. Party No. 1 in the plaint was that he was a registered medical practitioner and a member of the Indian Medicine Central Council and has been enrolled on the State Register of Indian Medicine Practitioners of Ayurved, Siddha and Unani system of medicines. The Indian Medicine Central Council Act, 1970 provided for the constitution of a Central Council of Indian Medicine and the maintenance of a Central Register of Indian Medicine and matters allied to it and Section 3 of the Act provided that the Central Government shall constitute a Central Council consisting of the members mentioned therein. Some of the members of the Central Council were to be elected by members enrolled on the State Register and one member from each category of Ayurved, Siddha and Unani system of medicines was to be elected from each University from amongst themselves by the members of the faculty. The Central Government was to nominate members to the committee having special knowledge or practical experience in respect of Indian medicine not exceeding 30% of the total members elected from amongst the members enrolled on the State Register and from amongst the members of the University faculty. The President of the Central Council was to be elected by the members of the Central Council as provided under Section 3(2) of the Act and the Vice -President of the Central Council for each of the systems of medicine was to be elected in accordance with Section 3(3) of the Act. The further case of the Opp. Party No. 1 in the plaint was that Rule 3 of the Indian Medicine Central Council (Election) Rules, 1975 made provisions regarding qualification to vote for members to be elected under Section 3 of the Act and according to the said Rule 3, all persons whose names were enrolled on a State Register of Indian Medicine Practitioners of Ayurved, Siddha and Unani system of medicine shall be entitled to vote and Rule 4(2) provided that such State Register shall be made up -to -date on receiving election notice from the Returning Officer and such, notice shall be given one month prior to the election and Rule 4(1) provided that such State Register shall be supplied to the Returning Officer and to the Board of the State concerned. The Opp. Party No. 1 further alleged in the plaint that number of members though entitled to vote as per the said provisions were not enrolled on the State Register of Orissa and although the State Register of Orissa was not made up -to -date the election to the Central Council was held. The Opp. Party No. 1 thus prayed in the said suit for declaring that the State Register of Orissa for the election held in the year 2002 for the Indian Medicine Central Council was erroneous having not been brought up -to -date after notice of election and for holding that the Central Government had no power to appoint the Returning Officer for the State and for quashing the order in Annexure -B fixing the date of election to 16.9.2002. The Opp. Party No. 1 further prayed in the said suit that consequent upon grant of the aforesaid two prayers, the entire election process conducted must also be declared as vitiated under the law.

(3.) MR . Khuntia, Learned Counsel for the petitioner submitted that law is well settled that a suit would be impliedly barred by the Act, if the provision contained in the Act would show that an adequate and efficacious alternative remedy has been provided under the Act for deciding the dispute raised in the suit. He submitted that since an adequate and efficacious alternative remedy to the dispute raised in the suit have been provided under Section 4(2) of the Indian Medicine Central Council Act, 1970, the Learned Civil Judge (Jr. Divn.), Aska instead of rejecting the application of the petitioner under Order 14, Rule 2, CPC should have allowed the same and held the suit to be barred under the said Act. In support of this submission, Mr. Khuntia relied on the decision of the Supreme Court in Dhruv Green Field Ltd. v. Hukam Singh and Ors., (2002) 6 SCC 416. He further submitted that the question as to whether the suit was barred under Section 4(2) of the Indian Medicine Central Council Act, 1970 in this case was a pure question of law and not a mixed question of fact and law and yet the Learned Civil Judge (Jr. Divn.), Aska has held in the impugned order that the bar of the suit raised by the Defendant No. 6 being a mixed question of fact and law cannot be decided as a preliminary issue under Order 14, Rule 2, CPC.